Order for Second Reading read.

(4.50 p.m.)

The Attorney General (Mr Y. Varma): Mr Speaker, Sir, with your permission, I move that the International Criminal Court Bill (No. XXIII of 2010) be read a second time.

Mr Speaker, Sir, the objects of this Bill are –

(a)        to provide for the effective implementation of the Rome Statute of the International Criminal Court in the laws of Mauritius;

(b)        to provide for the jurisdiction of our Courts to try persons charged with international crimes, and

(c)        to prescribe the procedure for the surrender of persons to the International Criminal Court  (ICC) and for other forms of cooperation with that body.

The Rome Statute of the International Criminal Court was adopted on 17 July 1998 by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court, following intensive international efforts and negotiations. Indeed, Lord Bingham, in his book entitled “The Rule of Law”, pays tribute to Gustave Moynier, one of the founders of the International Committee of the Red Cross, who, in 1872, urged the establishment of an international criminal court to adjudicate on violations of the 1864 Geneva Convention on Treatment of the Wounded.

The Rome Statute provides for the establishment of the International Criminal Court or “ICC”, which is the first permanent treaty-based international criminal court with the power to exercise jurisdiction over persons who have committed the most serious crimes of international concern: genocide, crimes against humanity, war crimes and the crime of aggression.

Mr Speaker, Sir, I wish to pause here to spell out very clearly the limitations to the jurisdiction of the ICC.

First, there is a temporal limitation to the ICC’s jurisdiction, that is, the ICC may only exercise jurisdiction with respect to crimes committed after 01 July 2002, the date the Rome Statute came into force.

Second, there is a territorial limitation to the ICC’s jurisdiction, that is, the ICC may only exercise jurisdiction if the crime took place on the territory of a State Party or a State otherwise accepting the jurisdiction of the Court. Where the crime took place on the territory of a State which is not party to the ICC Rome Statute, the ICC may only exercise jurisdiction where the accused is a national of a State Party or a State otherwise accepting the jurisdiction of the Court.

Third, and importantly, the ICC’s jurisdiction is limited by the principle of “complementarity”, which gives priority to national courts over the ICC. In other words, the ICC is barred from exercising jurisdiction over a crime whenever a national court asserts its jurisdiction over the same crime. The ICC can only act where the State is unable or unwilling genuinely to carry out the investigation or prosecution and the case is of a sufficient gravity to justify the exercise of the ICC’s jurisdiction.

Mr Speaker, Sir, of course, the principal motivation behind complementarity is not only the intent to respect State sovereignty as much as possible, but that it is ultimately the duty of each and every State to exercise its criminal jurisdiction over those responsible for unimaginable crimes or atrocities which deeply shock the conscience of humanity.  And if we are to combat impunity for these heinous crimes, and if we are to eliminate safe havens for fugitives, measures ought to be taken at national level to ensure that criminals can effectively be brought to justice.

Mauritius having, on 11 November 1998, signed the Rome Statute and, on 05 March 2002, ratified the Statute, it is now our responsibility to fully meet our international obligations and ensure full implementation of the Rome Statute, for Mauritius, Mr Speaker, Sir, should never be considered to be unwilling or unable to prosecute those responsible for these heinous crimes.

Mr Speaker, Sir, clause 3 of the Bill accordingly provides that the Rome Statute shall have force of law in Mauritius, while clause 4 of the Bill fills an important lacuna in our law by providing that international crimes, that is, Crimes against Humanity, War Crimes, Genocide and ancillary offences shall be offences punishable by penal servitude for a term not exceeding 45 years. I pause here to stress that the Crime of Aggression, that is, the illegal use of force of one State against another, has not been incorporated in the Bill. This is because the ICC cannot presently exercise jurisdiction over this crime until at least 01 January 2017, as decided by the plenipotentiaries at the Review Conference which was held in June 2010 in Kampala, Uganda.

Clause 4 (3) of the Bill provides for our Courts to have, in prescribed circumstances, extraterritorial jurisdiction to try a person who has committed an international crime outside Mauritius. These circumstances will include situations where the perpetrator or victim is a Mauritian national or a person ordinarily resident in Mauritius.

Clause 5 of the Bill provides that it shall not be a defence for a person charged with an international crime to plead that he had no responsibility for the crime if the crime was committed by forces under his effective command and control, or, as the case may be, his effective authority and control, as military commander, or a person effectively acting as a military commander, and there was a failure to exercise proper control over those forces. Moreover, it shall not be a defence for any other person to plead that he had no responsibility for the crime if the crime was committed by subordinates under his effective authority and control as a superior, and that there was a failure to exercise proper control over those subordinates.

Further, clause 6 provides that it shall not be a defence to an international crime nor a ground for a reduction of sentence for a person convicted of that offence, to plead that he is or was Head of State, a member of a Government or Parliament, an elected representative or a government official of a foreign State.

Clause 7, for its part, provides that acts in relation to any proceedings before the ICC such as giving of false testimony, interfering with the attendance or testimony of witnesses, intimidating or retaliating against officials of the ICC will constitute offences.  Such offences shall however be subject to a period of limitation of five years from the date on which the offence was committed, unless during that period an investigation or a prosecution has been initiated.

Clause 8 of the Bill which deals with the jurisdiction of our Courts over offences, provides that a prosecution for an international crime under clause 4 or an ancillary offence (that is, an attempt or an act of complicity) shall take place before a Judge without jury, while prosecution for the offence of contempt of the ICC shall take place before the Intermediate Court.

By virtue of clause 9 of the Bill, the ICC may sit in Mauritius, in such place as may be appointed by the President following a request of the ICC.  Mr Speaker, Sir, I will be moving for an amendment at committee stage to delete sub clause 4 from clause 9 of the Bill.  The ICC shall have such immunities and privileges as may be necessary to enable it to perform its functions in Mauritius.  The Judges, the Prosecutor, the Deputy Prosecutors and the Registrar of the ICC, when performing their functions in Mauritius, shall be immune from the criminal and civil jurisdiction of the courts of Mauritius, and shall enjoy such immunities and privileges as are accorded a representative of another State or Government under the Diplomatic Relations Act.  As for the Deputy Registrar and the staff of the ICC, they shall enjoy such privileges and facilities necessary for the performance of their functions in Mauritius, as may be prescribed.

Part IV of the Bill, that is, clauses 11 to 20, makes provision for cooperation with the ICC in relation to the arrest and surrender of persons for whom a warrant of arrest has been issued by the ICC.  Clause 14 deals with situations where the execution of a request for the arrest and surrender of a person may be in conflict with the obligations of Mauritius to a foreign country under international law or international agreements referred to in article 98 of the Statute.  The rights of the person detained, in respect of an enquiry under this Part, are also provided for in clauses 15 to 17.

Part V of the Bill, that is, clauses 21 to 31, deals with cooperation and judicial assistance.  In accordance with clause 21, Mauritius shall, subject to any other enactment and the Statute, cooperate with and render assistance to the ICC in relation to investigations and prosecutions in the 12 areas listed in that clause.  Pursuant to Part II of the Bill, the ICC will have to be informed of any proceedings undertaken in Mauritius.

Under clause 22, the ICC may also request assistance in obtaining evidence in Mauritius for use before the ICC, and the request may be executed in accordance with clauses 23 to 25 of the Bill.  However, pursuant to clause 27, nothing shall require or authorise the production of a document or the disclosure of information, which would be prejudicial to the security of Mauritius.  A certificate by or on behalf of the Prime Minister to that effect will be conclusive evidence of that fact.  Provision is also made in clauses 28 and 29 for securing the attendance of persons in Mauritius, and for the transfer of a prisoner in Mauritius into the custody of the ICC, for the purpose of giving evidence or assisting in an investigation.

Clause 30 of the Bill provides that a request may also be made to the ICC for assistance in an investigation into, or trial in respect of, conduct that may constitute an international crime within the jurisdiction of the ICC, while clause 31 of the Bill makes provision for consultations with the ICC in relation to the execution of a request.

The ICC may request other forms of assistance, which are provided for under Part VI of the Bill.  These other forms of assistance include the enforcement or recovery of a fine, the enforcement or execution of an order for forfeiture, effecting the service of any process or document, registration of a sentence, a compensatory order or a forfeiture order, the execution of an order for the payment of compensation for damages, or entering and searching of premises, the search of a person and the seizure of a book, document or object that has a bearing on a crime or an offence committed within the jurisdiction of the ICC.

Part VII of the Bill provides for the enforcement of sentences of imprisonment imposed by the ICC in Mauritius, while Part VIII provides, inter alia, for agreements that may be entered with the ICC and their revocation.

Mr Speaker, Sir, genocide, crimes against humanity and war crimes have resulted in millions of children, women and men being victims of unimaginable atrocities.  These crimes also threaten the peace, security and well-being of the whole world.  They cannot be allowed to go unpunished. 

Mauritius has, at international fora, including the United Nations General Assembly and at the ICC Review Conference, reiterated its unflinching commitment to the ICC and to combating impunity for grave human rights violations.  Further, recognising that children require special protection during times of armed conflict, Mauritius has ratified the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.

Mr Speaker, Sir, the reality is that the African continent has not been spared by bloody conflicts which have resulted in gross human rights violations against civilian populations.  In fact, all of the six situations currently in front of the ICC have arisen from our Continent.  That is not to question Africa’s commitment to international criminal justice at all, but rather, on the contrary, it can be seen more as a testament to the Continent’s resolve to end impunity.  Indeed, the situations in Uganda, the Democratic Republic of Congo and the Central African Republic were all referred to the ICC by the countries themselves.

Like many countries on the Continent, Mauritius remains fully committed to combating impunity and ensuring justice for victims of the gravest crimes, as it has often been asserted in international fora, including the United Nations General Assembly and at the ICC Review Conference.  Further, recognising that children require special protection during times of armed conflict, Mauritius has ratified the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.

However, the weakness of African countries has been the slow implementation of the Rome Statute within their jurisdictions, which has meant not only that countries have been unable to prosecute the most heinous crimes themselves, but have been unable to give full assistance to the ICC to enable it to do so.

In February this year, following reports of violent repression of peaceful demonstrators in Libya and gross and systematic violation of human rights taking place against the civilian population, resulting in many cases in their deaths, the United Nations Security Council referred the situation in Libya to the Prosecutor of the International Criminal Court for investigation.  On 16 May, a few weeks ago, the Prosecutor applied to the Court for the issue of arrest warrants against Muammar Gaddafi, his son and his brother-in-law, as there were reasonable grounds to believe that they had, as indirect perpetrators, committed crimes against humanity.

Mr Speaker, Sir, it is clear that implementation of our obligations under the Rome Statute was long overdue.  This Bill will enable Mauritius to honour its international obligations, to exercise criminal jurisdiction over those responsible for the crime of genocide, crimes against humanity and war crimes, and to cooperate and assist the ICC when the need arises.  It also sends the strongest message that our shores will not provide a safe haven to fugitives, and that we stand ready and committed to promoting the international rule of law and rendering justice to all victims of these heinous acts.

I would wish, before I end, to place on record my sincere thanks to Sir Victor Glover (our Legal Consultant), the Legal Adviser of the International Committee of the Red Cross, and the organisation “Parliamentarians for Global Action” for the assistance they have provided to my Office in the drafting of this Bill.

May I end by quoting President Oscar Arias of Costa Rica, Nobel Prize Winner in 1987.  I quote –

“Peace is a never-ending process, the work of many decisions by many people in many countries.  It is an attitude, a way of life, a way of solving problems and resolving conflicts.  It cannot be forced on the smallest nation or enforced by the largest.  It cannot ignore our differences or overlook our common interests.  It requires us to work and live together.”

Mr Speaker, Sir, the crimes provided for in the Rome Statute are fortunately not of direct relevance to Mauritius, but we owe it to humanity to ensure we are not a weak cog in the chain of international criminal justice.

With these words, Mr Speaker, Sir, I commend the Bill to the House.

Dr. A. Boolell rose and seconded.

Mr Varma: Mr Speaker, Sir, let me heartily thank the hon. Prime Minister, colleague Ministers, the hon. Leader of the Opposition and other hon. Members for their interventions and support on this very important piece of legislation.  A few points have been raised, Mr Speaker, Sir, by the hon. Members of the Opposition.  The first one being from the hon. Leader of the Opposition as regards arrest.

Mr Speaker, Sir, we should note that clause 2 provides that the Attorney General shall apply for a warrant of arrest, where he receives a request for the provisional arrest of a person who has been convicted of an offence, and clause 14 of the Bill provides that execution of the request can be postponed where there is conflict with obligations of Mauritius on international law or international agreements referred to in Article 98 of the Rome Statute.

The issue of execution of the arrest warrant is to be viewed on a case to case basis, but Mauritius certainly intends to honour its commitment under the Rome Statute and under this law, as rightly pointed out by the hon. Prime Minister.

Mr Speaker, Sir, few points have been raised by the hon. Third Member for Constituency No. 1 as regards the pre trial, trial and appeal.  I would like to refer to clause 16(3) on the pre trial Chamber, Mr Speaker, Sir, which clearly makes provision for the pre trial Chamber.  As regards the ICC, the pre trial Chamber, the trial Chamber, the appeal Chamber etc., we didn’t have indeed to replicate the ICC Court System, which is appropriate for an International Court structure.  What we have to do in our domestic legislation is to confer jurisdiction on our courts to try international crimes.  The police will inquire; the DPP will consider and advise prosecution.  The Supreme Court or the Intermediate Court will try the case depending on the gravity of the crime.

Mr Speaker, Sir, another point was raised by the hon. Third Member for Constituency No. 1 as regards the Supreme Court that we don’t have the provision for three Judges.  But, in fact, Mr Speaker, Sir, section 35 of the Courts Act makes clear provision that a trial, at first instance, should be with one Judge and then, when there is an appeal, it can be before three Judges, and it is worth mentioning sections 36 and 37 of the Courts Act.  Even, Mr Speaker, Sir, in cases of gang rape, it is before a Judge without Jury, and the amendment was brought in 2008, section 249(1B) of the Criminal Court.  As regards drug trafficking, the point was raised by the hon. Member again, and this is not within the jurisdiction of the ICC.  Countries like Trinidad and Tobago so advocated but this has not yet retained.  It hasn’t been retained yet, Mr Speaker, Sir.  We cannot, therefore, include this in the Bill until the Rome Statute itself is amended to include this as an international crime.

As regards the rights of the person during an inquiry, Mr Speaker, Sir, clause 17 of the Bill is clear on that, where the right of the person during the inquiry is highlighted.  As regards interpreters, Mr Speaker, Sir, the House will appreciate that this is purely an administrative matter for the Court, and this is not usually provided for in legislation.

Few points have been raised by the hon. First Member for Constituency No. 14 as regards immunity.  Indeed, Mr Speaker, Sir, the President does have immunity, as provided for in the Constitution, and he is the Commander In Chief, but this remains a civilian function.  There are no armed forces in Mauritius.  It is the Commissioner of Police who commands the Police Force, and he has no immunity as that of the Head of State.  Therefore, it is not necessary to derogate from the Constitution.

Mr Speaker, Sir, regarding the deletion of clause 9(4), as the hon. Prime Minister has rightly pointed out, we consider that clause 9(1) should be read together with the provisions of the Rome Statute and adequately provide for the ICC sitting in Mauritius.  Representations received to the effect that clause 9(4), as worded, may give rise to some ambiguity as to the ICC sitting in Mauritius where Mauritius has declined to investigate or prosecute.

These are a few points which have been raised by the hon. Members of the Opposition, Mr Speaker, Sir, and I have responded to all of them.  I commend the Bill to the House.

Question put and agreed to.

Bill read a second time and seconded.

COMMITTEE STAGE

(Mr Speaker in the Chair)

THE INTERNATIONAL CRIMINAL COURT BILL

(NO. XXIII OF 2010)

Clauses 1 to 8 ordered to stand part of the Bill.

Clause 9 (Seat and status of International Criminal Court)

Motion made and question proposed:  “that the clause stand part of the Bill.”

Mr Varma: I move that, in clause 9, the sub clause (4) be deleted.

Mr Berenger: I am not convinced at all by this very late amendment circulated to delete clause 9(4).  I take it that Government, the Attorney General, but especially the State Law Office did a lot of work on that over years, and came out with this formulation.  I don’t think it was baclé.  It must have been well thought through and then, at the last minute, we come with an amendment deleting clause 9(4).  I am not convinced at all, and we are going to run into trouble with that in the future.  That is why I consider it my duty to point the following and to make a suggestion.

Clause 9(1) says –

‘9. Seat and status of International Criminal Court

(1)     The International Criminal Court may sit in Mauritius, in such place as may be appointed by the President, at the request of the International Criminal Court, by Proclamation.’

By Proclamation!  I take it that the gist of this paragraph is for the President, by Proclamation, to appoint a place where the ICC will sit.  Nowhere is it said that the International Criminal Court may sit in Mauritius for the purpose of trying a person charged with an international crime.  When we are deleting sub clause (4), we are deleting that; we are throwing the baby away with the water.  Granted that clause 9(1) could have been drafted more clearly.  Granted!  But it is in sub clause (4) that we say that the International Criminal Court may sit in Mauritius, for the purpose of trying a person charged with an international crime.  This is to be found nowhere else.  I am not convinced by the reasons put forward by the hon. Prime Minister and the hon. Attorney General.  I am a patriot; I am a Mauritian.  I can understand that one is uneasy, unhappy in putting into our legislation – ‘the International Criminal Court may sit in Mauritius, for the purpose of trying a person charged with an international crime,’ and then adding ‘in a situation where it has determined – it being the Court – that Mauritius is unwilling or unable to genuinely carry out an investigation or prosecution of an international crime’.  I can understand that we are not happy with that; we will never do a thing like that; we cannot imagine that.  So, I would agree with deleting that, but that part stating ‘the International Criminal Court may sit in Mauritius, for the purpose of trying a person charged with an international crime’ must be somewhere. This must be found somewhere.  Therefore, why not take into consideration to sub clause (1) reading –

• The International Criminal Court may sit in Mauritius, for the purpose of trying a person charged with an international crime’.

and then carrying on with 4(1).  If there is need to consider that, let’s take time, because I am very unhappy with the fact that nowhere in the Bill we will find anything that says that the International Criminal Court can sit in Mauritius for the purpose of trying a person charged with an international crime.  It is to be found nowhere else.  I have done my duty; I have made my suggestion; this goes on record.  If Government, as usual, and the State Law Office, as usual, say no, we stay put.  So be it.  The future will tell.

Mr Varma: Mr Speaker, Sir, the point is noted, but I’ll beg to differ from what the hon. Leader of the Opposition has said.  Clause (3) of the Bill is clear on that –

‘3. Status of Statute and application of Act

(1)        Notwithstanding any other enactment, the Statute shall have force of law in Mauritius.’

Mr Speaker, Sir, I stand by what I stated earlier on and by what the hon. Prime Minister also stated, namely that clause 9(1) should be read together with the provisions of the Rome Statute.  This adequately provides for the ICC sitting in Mauritius.  I will stand by that.  The point is noted, but I beg to differ.

Amendment agreed to.

Clause 9, as amended, ordered to stand part of the Bill.

Clauses 10 to 45 ordered to stand part of the Bill.

Schedule ordered to stand part of the Bill.

The title and the enacting clause were agreed to.

            The Bill (as amended) was agreed to.

On the Assembly resuming with Mr Speaker in the Chair, Mr Speaker reported accordingly.

Third Reading

On motion made and seconded, the International Criminal Court Bill (No. XXIII of 2010) was read the third time and passed.